Whether it is necessary for a creditor with a maritime lien to place a ship provisionally;

A person holding a claim with a preferential right due to an employment contract of a ship's employees under the Commercial Act can exercise a claim for auction against a ship regardless of a change of the shipowner in accordance with the provisions of Article 869 and Article 861 (2) of the Commercial Act and receive a preferential repayment of the above claim from the auction proceeds. Thus, barring special circumstances, there is no need to keep the ship by provisional attachment.

Appellant 1 and 15 others, Counsel for the defendant-appellant

Suwon Shipping Corporation

Yong Shipping Corporation

Daegu High Court Order 75Ra25 dated April 14, 1976

The reappeal is dismissed.

The Re-Appellants' re-appeals' grounds are examined.

However, according to the reasoning of the original decision, if the Re-Appellant's claim for wage in the lawsuit falls under the priority claim due to the employment contract of the ship's employee under Article 861 (1) 2 of the Commercial Act, the re-appellant can exercise the right to demand an auction for the ship under Article 869 and Article 861 (2) of the Commercial Act regardless of shipowner's change, and it is possible for the re-appellant to obtain preferential payment of the above claim from the auction proceeds. Thus, barring special circumstances, the court below's above decision is just and there is no need to keep the ship under provisional attachment. The above decision of the court below does not contain an error of law by misunderstanding the legal principles of the right to estimate the maritime lien, the right to preferential payment and the right to demand an auction as stated in the theory of lawsuit, and even if there is a case where the lien becomes extinguished due to the lapse of the period of short-term exclusion as stated in the above, since there is no special reason to request an auction of the ship under the title of auction as long as there is no special reason to request for an auction.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Young-young (Presiding Justice)